Does Adultery Affect the Division of Marital Assets Upon Divorce?
Celebrity news is inundated with allegations of extramarital affairs. Did Tiger Woods cheat? Madonna? Josh Duhamel? John Gosselin? Jamie McCourt? The list goes on. It seems the more famous the celebrity and the more sordid the details, the more attention the public gives the affair. When speculation of cheating involves celebrities with significant assets, the public begins to query whether adultery affects the division of assets should the couple divorce.
No, adultery does not impact the division of property
Many clients assume that if their spouse cheats on them during their marriage, then the wronged spouse will be entitled to a larger percentage of the marital assets. However, New York law divides marital assets in an equitable manner, generally without taking into consideration any of the reasons for the marriage’s failure. Marital fault is irrelevant to equitable distribution of assets – in other words, adultery will not under any circumstance, even if the adultery is repeated throughout the duration of the marriage and committed in an overt manner, impact the division of marital assets.
There is only one instance where fault comes into play in the division of assets under New York law. This is known as “egregious fault.” New York case law defines egregious fault as that which is so outrageous that it shocks the conscience of the court. New York courts have repeatedly held that adultery does not rise to the level of egregious fault.
Clients must keep in mind that divorce law, unlike criminal law, is not concerned with punishment. The New York Court seeks to deliver an equitable resolution, not to determine which party was the moral wrongdoer of the marriage.
While it might seem unreasonable that a wrongdoer is not punished financially for hurting his or her spouse, couching this issue in terms of children may make New York law a bit more palatable for those who have been victims of an adulterous affair. Imagine this scenario: Wife commits adultery. Husband seeks to be remunerated financially for Wife’s wrongdoing. Wife is the custodial parent. Would it be fair to the children to be impacted financially because their mother committed adultery?
Or another scenario: Husband is CEO of Company A which he started himself and successfully built from the ground up. Wife stayed home and was not employed throughout the marriage. Husband commits adultery after the marriage has failed. Should his years of hard work and success be penalized due to an extramarital affair? Does one thing really have anything to do with the other?
These are among the policy considerations that have impacted the equitable partnership theory of New York law.